If an engineering contractor hires a female paramedic on a fixed-term contract for his Principal Employer's project requirements and the female employee goes on maternity leave, who is responsible for paying her maternity leave, the contractor, or the Principal Employer? Because the contractor is in the business of Operations & Maintenance (engineering), he does not require a female paramedic in his business activities. However, employed for the principal employer's commercial needs on a contractual basis.
Seniors are requested to guide/advise in this matter.
Regards,
Suresh
From India, Thane
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253Seniors are requested to guide/advise in this matter.
Regards,
Suresh
From India, Thane
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If the contractor does not require a person, then why did he employ him/her? If the Paramedic is an employee under his rolls, he is responsible for granting maternity leave and benefits. It is up to him to decide whether he can get the cost reimbursed from the principal employer or not. That is not the headache of the employee. For the employee, the contractor is the employer, and if he has been paying her salary for the work performed by her, he should pay it for the maternity leave period also.
As per a very recent case (Dr. Kavita Yadav Vs The Secretary, Ministry of Health and Family Welfare Department and Others (2023 LLR 1299)), the Supreme Court of India has said that the benefit should be given to the female employee even if her leave period extends beyond the fixed term for which she was appointed. The Court also said that any attempt to enforce the contract duration term during the maternity leave period would constitute "discharge" and attract section 12(2)(a) of the Maternity Benefits Act. That means you cannot say that her appointment is for a fixed period and the leave that extends beyond that period will not be your responsibility. You have to pay salary for 26 weeks. As already mentioned, if the appointment was made exclusively as requested by the Principal employer, you can ask for reimbursement.
In this case, another important point of discussion is that you have provided the service of a person whose role is very important. It would come under regular nature work or work of perennial nature. A principal employer is not supposed to hire such persons through a contractor, and as such, the contract itself would become sham if the issue is escalated to the appropriate authorities concerned.
From India, Kannur
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As per a very recent case (Dr. Kavita Yadav Vs The Secretary, Ministry of Health and Family Welfare Department and Others (2023 LLR 1299)), the Supreme Court of India has said that the benefit should be given to the female employee even if her leave period extends beyond the fixed term for which she was appointed. The Court also said that any attempt to enforce the contract duration term during the maternity leave period would constitute "discharge" and attract section 12(2)(a) of the Maternity Benefits Act. That means you cannot say that her appointment is for a fixed period and the leave that extends beyond that period will not be your responsibility. You have to pay salary for 26 weeks. As already mentioned, if the appointment was made exclusively as requested by the Principal employer, you can ask for reimbursement.
In this case, another important point of discussion is that you have provided the service of a person whose role is very important. It would come under regular nature work or work of perennial nature. A principal employer is not supposed to hire such persons through a contractor, and as such, the contract itself would become sham if the issue is escalated to the appropriate authorities concerned.
From India, Kannur
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Thank you, Madhu Jee, for your informative reply.
I agree that the principal employer bears primary responsibility because the contractor recruited the female paramedic solely to meet the contract obligation/PE's requirements. The contractor does not need to hire a female paramedic for his or her company activity.
Best Regards,
Suresh
From India, Thane
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I agree that the principal employer bears primary responsibility because the contractor recruited the female paramedic solely to meet the contract obligation/PE's requirements. The contractor does not need to hire a female paramedic for his or her company activity.
Best Regards,
Suresh
From India, Thane
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Principal employer liable if contractor fails to pay wages to workers Delhi High Court Judgement.pdf